connected scheme" has given way to one of more simplicity. See ante, note (23) to p. 167-Hov.

Page 198. (40) See ante, note (29) to p. 184.-Hov.

Page 199. (41) Abolished by stat. 3 & 4 Will. IV. c. 27, § 36 -Hov.

Page 200. (42) It is now the only one, with the exception of a writ of dower, or a quare impedit. -Hov.

Page 205. (43) Abolished, see ante, note (23) to p. 167.-Hov.

Page 215. (44) Repealed by stat. 1 & 2 Will. IV. c. 32.-Hov.

Page 215. (45) No landed qualification is now necessary to entitle a man to kill game -Hov.

Page 217. (46) See Book i. p. 76; Book ii. pp. 264,395, 402, with the notes thereto. Some little qualification of the text is requisite. In an action for obstructing lights, it is not necessary to lay the windows as "ancient" the action may be maintained if the easement has been enjoyed for twenty years. It is not even indispensable that the house, the windows of which have been darkened, shall be proved to have been built twenty years, or any thing like that time. It was decided in Compton v. Richards, 1 Price, 36, that the occupier of one of two houses built nearly at the same time, and purchased of the same proprie tor, may maintain a special action on the case against the tenant of the other house, for obstructing his window-lights, by add. ing to his own building, though the houses were not two years old. The principle on which the decision went was, that the purchasers of the several houses bought subject to what then appeared; and that, as the openings intended to be supplied with windows in each house were at that time sufficiently visible, the court must recognize an implied condition on the part of each purchaser, that nothing would afterwards be done by which those windows might be obstructed.-Hov.

Page 220 (47) Both abolished, by statute 3 & 4 Will IV. c. 27, s. 36; see ante, note (23) to p. 167.-Hov.

Page 221 (48) Abolished; see note (47) to p. 220.-- Hov.

Page 221. (49) Abolished-Hov. Page 221. (50) The writ of assise is abolished, by the statute of 3 & 4 Will. IV. c. 27, s. 36.- Hov.

Page 225. (51) All real and mixed actions (except for dower, quare impedit, or ejectment, were abolished by the statute of 3 & 4 Will. IV. c. 27, § 36. The legal means of preventing or redressing waste, now in use, are by injunction, ejectment, and action on the case. - Hov.

Page 227. (52) Abolished. See note (51) to p. 225.-Hov.

Page 232. (53) A totally opposite, and

more convenient, principle now prevails. Real actions were found to be so embarrassed by feudal technicalities, that (with three exceptions only, which are specified, ante, in the note 51 to p. 225,) all real and mixed actions have been abolished: much, therefore, of the present chapter is obsolete.-Hov.

Page 238. (54) The almost total abolition of real and mixed actions, by the statute of 3 & 4 Will. IV. c. 27, renders the learning respecting them, now, matter of antiquarian research, rather than of prac tical utility.-Hov.

Page 242. (55) These actions are abolished by stat. 3 & 4 Will. IV. c. 27, s. 36; the only remedy at law for the disturbance of a right of way is by an action on the case. The statute of 3 & 4 Will. IV. c. 71, s. 2, shortens the time necessary to establish a prescriptive right of way.-Hov.

Page 243. (56) This writ is abolished by statute 3 & 4 Will. IV. c. 27, s. 36.Hov.

Page 266. (57) The evils were become so palpable, that it was found expedient to abolish, by the statute of 3 & 4 Will. IV. c. 27, s. 36, all real and mixed actions, excepting only those of dower, quare impedit, and ejectment.-Hov.

Page 275. (58) The 15th section of the statute of 2 Will. IV. c. 39, empowers the judges of the court out of which any writ issued by virtue of that act, or any writ of capias ad satisfaciendum, fieri facias, or elegit, shall have issued, to make rules for the return of any such writ, or any day either during or out of term. See, touching this matter, Regulæ Generalis, made in Hilary Term, 1833, and set forth in 4 Barn. & Adol. 589-Hov.

But

Page 295. (59) But now, several counts are not allowed, unless a distinct subjectmatter is intended to be established in re-. spect of each; counts founded on one and: the same principal matter of complaint,, though varied in statement, description, or circumstance, are not permitted. counts upon a bill of exchange or promissory note, and for the consideration of the bill, are to be deemed founded on distinct subject-matters of complaint, for the debt and the security are different contracts. And a count for money due on an account stated, may be joined with any other count for a money demand, though it may not be intended to establish a distinct subjectmatter of complaint in respect of each of such counts; and the rule which forbids the use of several counts, is not to be considered as precluding a plaintiff from alleging more breaches than one of the same contract, in the same count. The examples specified in the General Rules made on this head, are given as some instances only of the application of the rules, to

which they relate; but the principles contained in the rules are not to be considered as restricted by the examples specified. Regula Generales, Hil. T. 1834.

Page 296. (60) Continuances are no longer to be entered upon any record whatever, or in the pleadings, except the jurata ponitur in respectu, which is to be retained. Regula Generales, Liil. T. 1834.- Hov.

Page 296. (61) No formal defence is now required in a plea: it should simply commence as follows:-" the defendant, (by his attorney, or, in person, as the case may be,) says that," &c. Regula Generales, Hil. T. 1834.-Hov.

Page 297. (62) Abolished, by statute of 3 & 4 Will. IV. c. 27, together with writs of entry, and all writs of right, except right of dower.-Hov.

Page 300. (63) By the statute of 11 Geo. IV. and I Will. IV. c. 47, s. 10, it is enacted that, in actions, suits, or other proceedings, by or against infants, the parol shall not demur.- Hov.

Page 302. (64) By the 8th section of the statute of 3 & 4 Will. IV. c. 42, it is enacted, that no plea in abatement for the non-joinder of any person as a co-defendant, shall be allowed in any court of common law, unless it shall be stated in such plea that such person is resident within the jurisdiction, and his place of residence is verified by affidavit. By the 9th section it is enacted that, to a plea in abatement of the non-joinder of another person, the plaintiff may reply that such person has been discharged by bankruptcy and certificate, or under an act for relief of insolvent debtors. The 10th section provides for the case of subsequent proceedings against the persons named in the plea of abatement, and guards against injustice being done to any one, by the adoption of the suggestion contained in the defendant's said plea in abatement. And the 20th of the Regula Generales, made in Hil. T. 1834, prescribes the form in which the plaintiff must commence his declaration, if he brings a new action to which he makes the persons named in such plea of abatement co-defendants.-Hov.

Page 305. (65) But now, by the late General Rules, except in cases where the right of pleading the general issue, and of giving special matter in evidence, is expressly allowed by some act of parliament, special defences must be specially pleaded; the vagueness as to the defence really intended to be relied on under a plea of the general issue, as that was formerly used, is discountenanced; for instance, in actions on the case, the plea of "not guilty" now operates as a denial only of the breach of duty, or wrongful act, alleged to have been committed by the defendant, and not of the facts stated in the inducement; and no

other defence than such denial shall oe admissible under that plea; all matters in confession and avoidance must be pleaded specially. So, in all actions of assumpsi, except on bills of exchange and promissory notes, the plea of non assumpsit now operates only as a denial in fact of the express contract or promise alleged, or of the inatters of fact from which such contract or promise is legally to be implied, but not of a denial of the breach thereof; so that, if the factum of the contract or promise be proved, the defendant cannot give in evidence any matter to defeat the demand made upon him, which he has not specially pleaded. In actions upon bills of exchange and promissory notes, the plea of non assumpsit is altogether inadmissible; in such actions, the defendant must traverse some matter of fact; e. g., the drawing, or indorsing, or accepting, or presenting, or notice of dishonour of the bill or note. So, in debt on specialty or covenant, the plea of non est factum operates now as a denial of the execution of the deed in point of fact only; and all other defences must be specially pleaded. The plea of nil debet is not allowable now in any action: the defendant may, in actions of debt on simple contract, (other than on bills of exchange and promissory notes,) plead that "he never was indebted in manner and form as in the declaration alleged ;" and such plea shall have the same operation as the plea of non assumpsit to an action of indebitatus assumpsil; that is, merely deny the creation of the debt, but all matters in confession and avoidance must be pleaded specially. And in all other ac tions of debt, in which the plea of nil debet was formerly allowed, including those on bills of exchange and promissory notes, the defendant must deny specifically some particular matter of fact alleged in the declaration, or plead specially in confession and avoidance. Again, in an action of detinue, the plea of non detinet operates now as a denial only of the detention of the goods by the defendant, but not of the plaintiff's property therein; and no other defence than such denial of the detention is admissible under that plea. And in actions of trespass quare clausum fregit, the plea of "not guilty” now operates as a denial only that the defendant committed the trespass alleged in the place mentioned, but not as a denial of the plaintiff's possession or right of possession of that place, which, if intended to be denied, must be traversed specially. A similar rule now applies in actions of trespass de bonis asportatis. However, in actions of trespass quare clausum fregit, when a right of way, or of common, or other similar right, is so pleaded, that the allegations of the plea as to the extent of the right are capa

ble of being construed distributively, they will be taken distributively; for instance, if the defendant pleads a right of way with carriages and cattle, and on foot, in the same plea, and issue is taken thereon; then, if a right of way with cattle or on foot only shall be found by the jury, a verdict will pass for the defendant in respect of such of the alleged trespasses as shall be justified by the right of way so found, and for the plaintiff in respect of such of the trespasses proved as shall not be so justified. Regula Generales, Hil. T. 1834, made in pursuance of the statute of 3 & 4 Will. IV. c. 42.-Hov.

Page 334. (66) The method of proceeding to outlawry in personal actions is prescribed by the 5th, 6th, and 7th sections of the statute of 2 Will. IV. c. 39, but the mode of reversing outlawries is not varied by that act.-Hov.

Page 336. (67) It has been repeatedly mentioned, that all real actions, except writs of right of dower, were abolished by the statute of 3 & 4 Will. IV. c. 27.-Hov. Page 337. (68) Abolished by the statute of 59 Geo. III. c. 46.-Hov. Page 338. (69) (67) to p. 336.-Hov.

Abolished; see note

Page 341. (70) Abolished by statute of 3 & 4 Will. IV. c. 42, s. 13.-Hov. Page 341. (71) Abolished by the statute of 3 & 4 Will. IV. c. 27.- Hov. Page 353. (72) All these writs were abolished by the statute of 3 & 4 Will. IV. c. 27.-Hov.

Page 354. (73) The statute of 3 & 4 Will. IV. c. 27, has formally, and in express terms, put an end to what had previously become almost obsolete.-Hov.

Page 371. (74) By the 40th section of the statute of 3 & 4 Will. IV. c. 27, it is enacted, that all monies charged upon land, and all legacies, shall be deemed to have been satisfied at the end of twenty years, if there has been no interest paid thereon, nor any acknowledgment of the demands given in writing, in the meantime.-Hov.

Page 374. (75) Writs of attaint and of assise are both now abolished. See ante, pp. 184, 351.-Hov.

Page 377. (76) By the 24th section of the statute of 3 & 4 Will. IV. c. 42, it is enacted, that if there be a variance as to some particulars between the proof thereof given at the trial and the setting forth thereof on the record or document on which the trial is had, the court or judge may direct the jury to find the facts specially according to the evidence; but, notwithstanding such finding, the court from which the record issued may, if they think the variances immaterial to the merits of the case, give judgment according to the very right. Or the judge, at the trial, if VOL. II.

perfectly satisfied that the variances are not material, may then direct the record to be amended as to those particulars, on such terms with respect to costs, or postponing the trial, as he may think reasonable. Hov.

Page 378. (77) By the 25th section of the statute of 3 & 4 Will. IV. c. 42, it is enacted, that the parties in any action or information, after issue joined, may, by consent, and by leave of any of the judges of the superior courts at Westminster, state the facts of the case, in the form of a special case, for the opinion of the court, thus withdrawing the question altogether from a jury.

Either party may set down a special case for argument.-Hov.

Page 383. (78) By the statute of 1 Will. IV. c. 22, the courts of law at Westminster are empowered, in any action depending in such courts on the application of any of the parties to such suit, to order the examination upon oath, upon interrogatories or otherwise, of any witnesses; and if any of such witnesses are out of the jurisdiction of the court where the action is pending, to order a commission to issue for their examination; and to give all such directions touching the time, place and manner of the examination, as may appear reasonable and just. This statute extends to all places under the dominion of his majesty in foreign parts; but, no examination or deposition taken by virtue of this act can be read in evidence at any trial without the consent of the party against whom the same may be offered, unless it shall appear to the satisfaction of the judge that the examinant or deponent is then beyond the jurisdiction of the court, or dead, or unable from permanent sickness or infirmity to attend the trial.-Hov.

Page 388. (79) Writs of attaint, assises, and trial by battel, are all abolished; see ante, pp. 337, 341, 351.-Hov. Page 393. (80) -Hov.

This writ is abolished.

such person a defendant: and where any nolle prosequi is entered upon any count, or as to any part of a declaration, the defendant shall be entitled to and have judgment for his reasonable costs in that behalf. -Hov.

Page 396. (83) By the Regula Generales made in Hil. T. 1834, it is ordered, that all judgments, whether interlocutory or final, shall be entered of record of the day of the month and year, whether in term or vacation, when signed, and shall not have relation to any other day; provided that it shall be competent for the court or a judge to order a judgment to be entered nunc pro tunc.-Hov.

Page 397. (84) By the statute of 1 Will. IV. c. 7, it is enacted, that any writ of inquiry of damages may be made returnable on any day certain, in term or vacation; and at the return thereof a rule for judgment may be given, costs taxed, final judgment signed, and execution issued forthwith, unless the officer before whom the writ was executed shall certify that signing of final judgment ought to be stayed, or a judge of the court out of which the writ issued shall make an order to that effect. And it is further enacted, that in any action brought in the superior courts, the judge before whom it is tried may certify, before the end of the sittings or assizes, that execution ought to issue forthwith, or at some specified day, and subject or not to any condition or qualification; in all which cases a rule for judgment may be given, costs taxed, and judgment signed forthwith; and execution may be issued forthwith or afterwards, according to the terms of the certificate, on any day in vacation or term; provided that any judgment signed or execution issued by virtue of this act may be vacated, stayed, or set aside, and a new trial or new writ of inquiry granted by the court in which the action was brought, if justice may so require.-Hov.

Page 400. (85) By the 31st section of the statute of 3 & 4 Will. IV. c. 42, it is enacted, that executors who sue in right of their testator must pay costs, in all cases in which they would be liable to do so if they were suing in their own right; unless the court in which such action is brought, or a judge of one of the superior courts of law at Westminster, shall otherwise order. -Hov.

Page 402. (86) Abolished by statute of 3 & 4 Will. IV. c. 27, s. 36.-Hov.

Page 403. (87) Abolished by the statute cited in the preceding note (86.)

Page 403. (88) All writs of right, except writs of right of dower, are abolished by the statute of 3 & 4 Will. IV. c. 27.Hov.

Page 404. (89) Not now. Abolished by stat. 6 Geo. IV. c. 50, s. 60.-Hov. Page 405. (90) Abolished by statute of 3 & 4 Will. IV. c. 27.-Hov.

Page 407. (91) And the 23d section of the statute of 3 & 4 Will. IV. c. 42, extends this power of amending variances in the record as to particulars, by the misstatement of which the opposite party cannot have been prejudiced, though such variances are not between any written or printed documents produced in evidence and the record.-Hov.

Page 412. (92) All real and mixed actions, except writs of dower, quare impedit, or ejectments, are abolished by the 36th section of the statute of 3 & 4 Will. IV. c. 27. Writs of seisin, therefore, are out of use; but the writ of possession is the writ of execution in ejectment.- Hov. Page 412. (93) Abolished; see the last note.-Hov.

Page 413. (94) Assises of nuisance, and writs of quod permittat, are abolished: see note (92) page 412.-Hov.

Page 427. (95) The learned commentator makes no distinction, in this respect, between writs de lunatico inquirendo (which are now out of use,) and commissions, by which the old writs have been superseded: yet it is only to the former (now antiquated) process, that the doctrine laid down in the text is applicable.

The statute of 3 & 4 Will. IV. c. 36, with a view to diminish the expense of commissions of lunacy, empowers the Lord Chancellor, when he thinks fit, to direct any such commission to a single commissioner. Previously, three commissioners were always employed. The same act authorizes the Lord Chancellor to appoint visitors to superintend and to report to him from time to time, the care and treatment of all persons found idiot, lunatic, or of unsound mind, by inquisition; and directs that such persons shall be visited at least once a year. And the statutes of 2 & 3 Will. IV. c. 107, and 3 & 4 Will. IV. c. 64, regulate the care and treatment of insane persons, and make provisions for the regular licensing and superintending all houses for the reception of such persons. The 46th section of the first-cited statute enacts, that no person (except a guardian or relative who derives no profit from the charge, or a committee appointed by the Lord Chancellor) shall, under pain of being deemed guilty of a misdemeanor, receive to board or lodge in any house not licensed under the said act, or take charge of, any insane person, without first having the like order and certificates as are required by the said act on the admission of an insane person into a licensed house. The 47th section directs, that such order

and certificate shall be sent to the clerk of the "Metropolitan Commissioners of Lunacy. And the 48th section empowers the Lord Chancellor, if he shall think fit, to direct that persons confined, as being insane, in the private care of any guardian or relative, or other person, shall be visited and examined, and a report of their state made to the Lord Chancellor.

That marriages of lunatics are void, see Book i. p. 439; and as to their disability to convey or purchase, see Book ii. p. 291. -Hov.

Page 430. (96) The statute of 3 & 4 Will. IV, c. 104, renders freehold and copyhold estates assets for the payment of debts by simple contract, as well as debts by specialty; but creditors by specialty in which the heirs are bound are entitled to priority of payment. And the statute of 3 & 4 Will. IV. c. 106, enacts, that every lineal ancestor shall be capable of being heir to any of his issue. Thus both these instances of hardship have ceased to exist; the relief which no Court of Equity had a power to give having been yielded by the legislature.-Hov.

Page 430. (97) The statute cited in the last note has done away with this grievance also. Hov.

Page 430. (98) This delay of justice is remedied by the statute of 11 Geo. IV. and 1 Will. IV. c. 47, § 10.-Hov.

Page 432. (99) This anomaly no longer exists; by the statute of 3 & 4 Will. IV. c. 105, widows are entitled to dower out of equitable estates, if their husbands have not barred the right.-Hov.

Page 439. (100) Now, not by analogy, but by the express enactment of the statute of 3 & 4 Will. IV. c. 27, s. 28, a mortgagor is barred at the end of twenty years from the time when the mortgagee took possession; unless in the mean time an

acknowledgment of the title of the mortgagor, or of his right of redemption, has been given in writing, signed by the mortgagee; in which case the time only runs from the date of such acknowledgment.Hov.

Page 444. (101) By the statute of 11 Geo. IV. & 1 Will. IV. c. 36, the provisions of which act were extended and certain parts thereof explained by the statute of 2 Will. IV. c. 58, the law regarding commitments by Courts of Equity for contempts, and the taking bills pro confesso has been altered; with advantage to the administration of justice, and at the same time with humane consideration for parties confined for non-payment of costs of contempt, which costs their poverty renders them unable to discharge.-Hov.

Page 447. (102) Wager of law is abolished; see note (70) to p. 341.-Hov.

Page 448. (103) Without depriving courts of equity of their jurisdiction in these cases, the statute of 1 & 2 Will. IV. c. 58, gives, to a considerable extent, a concurrent jurisdiction to courts of law. Upon the application of a defendant sued in any action of assumpsit, debt, detinue, or trover, such application being made after declaration and before plea, showing that the defendant does not claim any interest in the subject matter of the suit, but that the right claimed by or supposed to belong to some third person; the Court may order such third person to appear and maintain, or relinquish, his claim; and in the meantime stay such action. If such third party should not appear, the Court may bar his claim against the original defendant, his executors, or administrators; and make such order between such defendant and the plaintiff, as to costs and other matters, as may appear just.-Hov.